Permits & Approvals Process

Rob Gundlach represented a shopping center owner to obtain site plan approval, variances, and waivers/exceptions for the conversion and redevelopment of an existing office building in Lawrence Township, New Jersey, for reuse as new car automobile dealership. Rob has represented other owners over the years to obtain zoning and land use approvals in Lawrence Township.  Please consider using Rob for your next project requiring zoning and land use approvals in Lawrence Township.

Nothing can stop a development project faster than a Pennsylvania municipality denying a developer’s Act 537 planning module for wastewater management. If the municipality refuses a developer’s plan to connect to public sewer or to install some alternate or experimental onlot sewage system, the entire development project is at risk. However, a municipality’s denial of an Act 537 planning module update is not the end of the line.

Under Section 750.5(b) of the Pennsylvania Sewage Facilities Act, any resident or equitable property owner (the “applicant”) located in the denying municipality may file a “private request” with the Pennsylvania Department of Environmental Protection (the “Department”). A private request asks the Department to compel the municipality to revise its Act 537 Plan in accordance with the applicant’s plan. To be successful, the applicant must show that the municipality’s Act 537 Plan is either (1) not being implemented, or (2) is inadequate to meet the applicant’s sewage disposal needs. If the Department approves the private request, the municipality is required to revise its Act 537 Plan in accordance with the applicant’s plan.

While submitting a private request to the Department may appear simple, the process requires strict adherence to certain procedural requirements. In addition to substantive proof that a municipality’s Act 537 Plan is inadequate, the applicant must comply with specific notice, filing, and public comment requirements. If the applicant does not meet these procedural requirements, the Department may deny a private request without addressing the merits of the applicant’s request. Therefore, leaving the development project in no better shape than it was before. We can help you navigate the private request process to ensure that your request receives the Department’s full attention and review.

If you would like more information, please contact Rob Gundlach at 215-918-3636 or rgundlach@foxrothschild.com.

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After receiving a favorable zoning or land use decision, such as a passed ordinance amendment or a granted variance from the zoning hearing board, you should take steps to protect yourself from any validity appeals by publishing notice of the decision.  Section 108 of the Municipalities Planning Code (“MPC”) provides that notice of municipal action to adopt an ordinance or enter a decision may be provided through publication, at any time, “once each week for two successive weeks in a newspaper of general circulation in the municipality.”  This notice can be published by the governing body of the municipality, by any resident or landowner in the municipality (in the case of an ordinance), or by the applicant requesting the decision, the landowner or successor in interest of the property subject to or affected by the decision (in the case of a decision).  The notice must contain certain elements and statements, as provided in Section 108 of the MPC.

Once the second publication of the notice is published, any appeal or action contesting the validity of an ordinance based on procedural defect in the process of enactment, or contesting the validity of a decision based on procedural or substantive defect shall be dismissed, with prejudice, as untimely filed if not filed within the 30th day following the second publication of the notice.  Only an appeal establishing an “unconstitutional deprivation of due process” will be permitted after this 30-day period following the second notice publication.

Therefore, no appeal or action can be taken to contest the validity of an ordinance or decision after the 30th day following the second publication of the notice. This extra step of publishing the Section 108 notice ensures that you can proceed with the purchase and/or development of a property pursuant to the ordinance or decision without any uncertainty as to its validity after the 30-day period.

Copyright: ymgerman / 123RF Stock Photo
Copyright: ymgerman / 123RF Stock Photo

Before you rush to file a land development application with a municipality, make sure that the proposed work actually constitutes land development requiring municipal approval. In certain circumstances, municipal land development approval is not required.

For example, Pennsylvania courts have held that the construction of a roof over a previously-approved structure, such as a patio, does not constitute land development under the Municipalities Planning Code (“MPC”).  Per the Pennsylvania Commonwealth Court, land development typically involves a large tract of land being divided into smaller parcels for construction of residential or commercial buildings, which is the kind of large-scale development of land, “with an inevitable and concomitant effect on the public generally,” that is contemplated by the MPC.  The Commonwealth Court determined that a patio was only one component of a building, and construction of the roof over the patio is certainly not the type of “large-scale development of land” contemplated by the MPC. The construction of the roof would not increase parking, storm sewer needs, or sewer and water use at the building, nor would it change the amount of impervious surface, result in any increase of water runoff or sewage, increase parking areas, traffic or stormwater, or increase the square footage of the patio itself.  Mere construction of a roof over a previously-approved patio does not transform the patio, which would not otherwise require the submission and approval of land development plans, into a patio requiring such approval.

Similarly, the Pennsylvania Supreme Court has also determined that the construction of a billboard does not constitute land development within the meaning of the MPC.  The MPC, when viewed as a whole, clearly is intended “to apply to the allocation of land in such a way that issues related to public use, water management, sewers, streets and the like must be addressed.” The construction of a billboard, like raising the roof of an existing building or constructing a roof above a previously-approved structure, does not give rise to concerns relating to sanitary sewer, water, storm water management, parking, driveways, roadways, curbs and sidewalks, and does not increase the footprint, square footage, necessary parking, curbing, sidewalks, sewer, water, or stormwater relating to any existing buildings or structures. Because of these factors, this type of work should not constitute land development.

Therefore, the construction of a roof over an already-paved surface, or other similar work with no effect on issues such as public use, stormwater management, sewers, streets, parking or expansion of building size, may not require municipal land development approval.